Story here:
Here’s the crux of the legal argument:
This seems like a dodge to me. Outlawing slavery would have been prohibited because it touched on more than one area in government. Making it not a crime to jaywalk affects revenue and police powers, so it would be invalid? I mean, is there any way to only affect one thing regarding government with any amendment?
Gov. Noem thinks it’s just dandy:
Does it tho? Will this decision stand in higher court?
The single subject rule makes sense to me, in that constitutions are meant to be different from statutes. If you want to enact multifaceted legislation, that needs to be done by statute. (Or technically, can also be done by revision of the constitution, but that shouldn’t be how it’s done.) If you can imagine someone wanting to vote for one part, but not another, then they should be subject to separate votes.
If you want legalized marijuana in the constitution, it should be a pretty simple thing just declaring recreational marijuana legal. Then enact or leave to the legislature the statutes to carry it out.
But that doesn’t always work out the way it should. More than one state legislature has dragged their heels at implementing the will of the voters as expressed thru marijuana ballot initiatives.
It seems to me that the ballot initiative dealt with one issue: marijuana. It deals with the one issue in a number of ways, but it only addresses one issue.
By why are the people as sovereign more limited than the legislature? Why a single subject rule for the sovereign, but not for the sovereign’s delegate, the legislature?
There’s quite a bit of subtext in the AP story that seems indicate that things might not be all square, too:
That doesn’t seem to be the claim of this judge. The claim is that specifically state constitutional amendments, no matter who passes them, should not deal with more than one subject at a time, and that this is based on the state constitution as it exists now. To handle what is in this amendment, if the judge is correct, you could have multiple amendments, one for each part, or you could have the amendment be more general, and rely on statutes to handle the details. If SD has ballot initiatives (I don’t know if they do or not) those statutes could come from the legislature or from the vote of the people. So it’s not who is passing the law that matters, it is the type of law being passed, constitutional amendment or statute.
Having said that, I have no idea which legal argument is better or which will prevail in the end.
They aren’t. There’s no single subject rule for legislation – possibly just a relation clause. The difference isn’t between the people and the legislature, but between constitutional amendments and statutes (which the people may also be able to pass – I don’t know if SD has that type of initiative process.)
IMO, the time to deal with this sort of thing should be before the initiative appears on the ballot. Once it has, and the people vote to support it, it’s going against the will of the people to deny it. It looks politically motivated to me to do it this way, like they wanted to make it seem like they were giving the people a chance, but when it didn’t go the way they wanted, they had a legal excuse for why it shouldn’t pass.
I also would suggest that such an interpretation of what counts as a single issue is overly restrictive. It should matter what the public would consider a single issue, not whether there’s some technical legal argument that it’s more than one issue.
Finally, I question the wisdom of such restrictions in the first place. You could wind up with interrelated issues where the results don’t align, and you get stuck in a very weird place.
Sure. That doesn’t mean the single subject rule shouldn’t have teeth. The people can always vote accordingly for their legislators, and/or propose an initiative law, rather than constitutional amendment.
In my state, there was a good example – there was a constitutional amendment initiative on criminal justice that did a number of things. It passed, but was struck down on single subject grounds. The proponents then broke it up into multiple separate amendments, some of which passed, and some failed.
Again, passing marijuana legalization by initiative is a great idea, as far as I’m concerned. It just needs to be done as a statutory scheme and not part of the constitution.
Maybe, for those in favor of letting it stand, you could explain why it’s a good idea to have this sort of legislation in the state constitution.
The other point to note here, having just looked up Kristi Noem’s bio, is that she’s a far-right Republican nutjob in the Trumpist mold. During the current pandemic she was opposed to mask-wearing and restrictions on social gatherings; she’s all for repealing the ACA; all for abortion bans; and against immigration, especially when it involves Muslims. Needless to say she has a huge problem with allowing people to smoke pot, even if a majority is in favor.
Pot was legal/tolorated until Prohibition. White folks had their moonshine and speakeasies, black folks only had their blues clubs…soda only. But they smoked that wacky tobaccy and seemed to be having fun. Can’t let those black boys be having no fun so lets cut our noses off our faces and make all forms of hemp and cannabis felonies.
AZ voted to make MMJ legal 10 years ago, but it wasn’t passed until the PTB were sure that we the people really, really understood what we were voting for, cause we are all children who need to be protected from that evil weed. Besides, brown skinned people like it too. Very bad.
Yes, the notoriety of cannibis can largely be traced to one Harry “Reefer Madness” Anslinger, who needed something to be opposed to after Prohibition. The fact that Blacks were prominent users was convenient since Anslinger was a raging racist even by the standards of his time. He promoted the use of the term “marijuana” because it had a foreign connotation that made it seem even more evil. It supported his narrative that it was a dangerous narcotic from a foreign hellhole that drove its users to insanity and murder, a view that I’m sure the good Republican governor of South Dakota still holds today.
Something is rotten in Pierre, and it has to do with legal fees. The legal fees of the four voters who were granted permission by a judge to intervene in the lawsuit are oaud for by South Dakotans for Better Marijuana laws, which has raised money by appeals to South Dakotans.
But the legal fees for Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Rick Miller, who filed the lawsuit to block the amendment, are a murkier matter. Noem approved state funds to pay for Miller’s legal fees. A spokesperson for the Sheriff’s office, who is also a state senator originally appointed by Noem, says no taxpayer money is going toward Thom’s legal fees but declined to say where the money is coming from.
[source]
Doesn’t the governor authorizing state funds to pay for the legal fees of someone filing a lawsuit seem ethically dubious? As I understand it, Miller and Thom were not filing the lawsuit on behalf of the State. I’m also wondering why Miller gets his legal fees paid and Thom does not. And who is paying Thom’s legal fees?
I’ve had a look at the South Dakota constitution and the text of the ballot initiative. Generally I’m not in favor of courts getting in between the voters and the law, and generally I’m in favor of single-issue legislation, but for me the winning position is that generally,
… if the people of South Dakota wish to change the law on recreational use of marijuana, they should vote for a government and legislature that will do that.
It looks like the ballot initiative was an attempt to run around behind and defeat the people who elected representatives, and there was no more inherent legitimacy in that attempt than there was in blocking it.
If the text was the kind of thing that might fit well in a constitution, or if the constitution was the kind of thing that included lots of different laws, I’d think different. In this case, although I’m generally in favor of liberalization, and generally opposed to court involvement, I have to reluctantly concede that the initiative was both bad and anti-democratic, and permitting it would have been an abuse of process.
And how are the people who voted for the ballot initiative different from the people who elected representatives? How is direct democracy less an expression of the will of the people (and less “democratic”) than representative democracy?
And how is the ballot initiative more of an expression of the will of the people, and how is an election less democratic?
Since I don’t see a clear winner there, I’m going with what I said about the constitution and the text: I think it was bad.
I think that it’s valuable to follow the forms of constitutional government, and not to try and legislate by constitutional change, because I think that constitutions and government are difficult. As illustrated here, were a bad and inappropriate change to the constitution was passed, but also in general.
As I mentioned above, I’ve got opinions about different parts of this situation, but I don’t think that the supporters of the ballot initiative have a monopoly on morality and justice: they’re contenders in the political process, and they’ve been temporarily blocked by a different aspect of the same system they sought to exploit.
Well, for starters, a direct democratic vote on a specific issue will always be more indicative of the voters’ views on that issue than electing representatives whose views may broadly align with those voters but whose views on that specific issue may not. Direct democracy is inherently more reflective of the “will of the people” (at that moment) than representative democracy. It’s also incredibly unwieldy on a regular basis which is why representative democracy is the default but nonetheless a ballot initiative where you ask people what they think about something will give you a better reflection of what they think of that thing than asking a representative what they think the people think of that thing. How could it not?
There are certainly issues with ballot initiatives but calling them “anti-democratic” is pretty much the opposite of reality. On the other hand, claiming that ballot initiatives “exploit the system” and “run around behind and defeat the people who elected representatives” is pretty anti-democratic.
I agree. Ballot initiatives are not always a good way to govern, but they are the ultimate expression of direct democracy. This strikes me as an activist attempt to find reasons to enforce a predetermined ideology. If a bunch of legislation is needed to implement the clearly expressed will of the people, then the appropriate response is to pass such legislation, not to quash the referendum and pretend it never happened.
It does, as long as the concept of “single subject” isn’t so narrowly defined as to prevent any constitutional amendment from passing muster. Marijuana legalization touches multiple aspects of government because EVERYTHING touches multiple aspects of government. In this case, the single subject is marijuana, it isn’t MJ plus alcohol, or MJ plus Covid relief, or MJ plus income tax, it’s MJ and how the government should be involved with MJ.
I’ve just read the decision in this case. You can find it here (PDF). The relevant constitutional analysis starts on page 6.
The decision gets into some rather arcane discussion of the SD constitution, and how to assess whether an amendment covers a “single subject.” The analysis covers other cases where this issue has been raised, and notes that the “single subject provision should not be construed narrowly or technically in all cases.” The judge then discusses the amendment and explains why it is too broad to encompass a single subject.
There is also discussion of the difference between and amendment and a revision to the constitution. These two things are defined separately in the SD constitution. The judge concludes that “Amendment A provides far-reaching changes to the nature of South Dakota’s governmental plan and is therefore a revision,” and not an amendment. A revision to the constitution requires that the measure be “submitted to the voters through the constitutional convention process,” and not passed as a ballot measure.
I’m not a constitutional lawyer, and I’m definitely not an expert on the South Dakota Constitution, but there is quite a bit of logic to the argument made by the judge in this decision, at least in my lay opinion. After all, look at the language that this amendment would have added to the SD constitution. Click on the Summary arrow; I’ve hidden it because it’s so long.
The addition is well over 2,000 words. The whole United States Constitution (before amendments) is only about 4,500 words. The SD measure reads much more like legislation than a constitutional provision to me. And I say that as someone who strongly supports marijuana legalization. In terms of outcomes, I’d like the SD Supreme Court to overrule this decision and keep the legalization measure in place, but I’m also not sure that the judge’s decision was indefensible.
What they probably should have done, and probably should do in future, is write the amendment much more in the manner of a broad amendment, something like:
I’m sure there are better ways to write it, but you get the idea.